Divorce

International Encyclopedia of Marriage and Family
COPYRIGHT 2003 The Gale Group Inc.

Divorce

effects on childrendavid h. demo,andrew j. supple

effects on coupleskari henley, kay pasley

effects on parentscolleen l. johnson

EFFECTS ON CHILDREN

Two of the strongest and most widely held beliefs about contemporary family life are that marriage should be a lifelong commitment and that parental divorce has serious negative effects on children. Because of the conviction with which these values are held, many people are alarmed by the high divorce rate in the United States and in many other industrialized nations. Across industrialized nations, the divorce rate is by far the highest in the United States, where about half of all first marriages formed in the 1990s will end in divorce, and more than one million children experience parental divorce each year (U.S. Bureau of the Census 1998). While the divorce rate in the United States is 4.33 per 1,000 population, the comparable rates in the United Kingdom, Sweden, Canada, Germany, France, Japan, and Italy are 2.91, 2.42, 2.41, 2.14, 2.01, 1.65, and .47, respectively (United Nations 2000). Although marital dissolution is an important social issue in many countries, research on its effects on children has largely been conducted in the United States.

In the United States, dramatic changes in children's living arrangements have occurred across all racial, ethnic, and socioeconomic categories. From 1970 to 1998, the percentage of white children living with two parents (including stepparents) fell from 90 percent to 74 percent; for African-American children, the percentage declined from 60 percent to 36 percent; and for Hispanic children, the percentage decreased from 78 percent to 64 percent (Teachman, Tedrow, and Crowder 2000).

With so many children and adolescents experiencing their parents' divorce and living in single-parent families and stepfamilies, it is important to understand how parental divorce affects children. During the 1980s and 1990s, a considerable amount of social scientific scholarship was devoted to considering whether or not divorce negatively affects the lives of children. Social scientific and psychological evidence regarding the influence of divorce on children is also used in formulating social policies and laws regarding marriage and divorce. In the 1990s alone, more than 9,000 studies on divorce were conducted in the United States across a variety of disciplines, including sociology, family studies, developmental psychology, clinical psychology, family therapy, social work, social policy, and law (Amato 2000).

With so much attention being devoted to the topic across such diverse fields, and with divorce being both deeply personal and controversial, it is perhaps not surprising that there are different interpretations of the consequences of divorce for children. Although there are scientific data to suggest that divorce has negative effects on children, scholars are not in complete agreement regarding how strong the effects are, whether or not negative effects are due to divorce as an event or a process, and whether or not divorce may actually be good for children in some situations. Three prevailing themes are supported by the bulk of research evidence: (1) divorce is better understood as a process rather than a discrete life event; (2) the consequences of divorce for children are not as severe nor as longlasting as popularly assumed; and (3) there is a substantial degree of variation in how individual children and adolescents respond to divorce. This last point suggests that divorce undoubtedly has some negative effects for some children, particularly in certain situations. What is not clear, however, is whether the negative effects of divorce are due to family circumstances prior to the divorce, or after divorce.

Divorce as a Process

One instructive means of thinking about divorce is to consider divorce not as a single event that influences people's lives, but rather as a process. This conceptualization of divorce suggests that the manner in which divorce ultimately affects children involves a confluence of factors and processes that occur early in the divorce, as well as processes occurring after the divorce. Moreover, this line of reasoning suggests that many negative effects for children in divorced families may be due to exposure to traumatic experiences and processes that have nothing to do with divorce per se. That is, children whose parents divorce witness negative family interaction prior to a divorce and also experience many life transitions and strained familial relationships after divorce. This view of divorce as a process has been corroborated in a review of studies conducted in the United Kingdom, New Zealand, and Australia (Rodgers and Pryor 1998).

Marriages that end in divorce typically begin a process of unraveling, estrangement, or emotional separation years before the actual legal divorce is obtained. During the course of the marriage, one or both of the marital partners begins to feel alienated from the other. Conflicts with each other and with the children intensify, become more frequent, and often go unresolved. Feelings of bitterness, helplessness, and anger escalate as the spouses weigh the costs and benefits of continuing the marriage versus separating. Gay C. Kitson's (1992) influential study of marital breakdown describes a distressing process characterized by emotional distance, dissatisfaction, and frequent thoughts and discussions about whether and how to separate. Many unhappy couples explore marital counseling, extramarital relationships, and trial separations, with marital happiness fluctuating upward and downward from day to day and year to year as the marital relationship and marital roles are renegotiated.

These predivorce changes in the family often negatively influence the psychological states of parents; parental stress, anxiety, and depression, in turn, inhibit effective parenting. Paul R. Amato and Alan Booth (1996) conducted a rare longitudinal study on a national sample and documented problems in parent-child relationships as early as eight to twelve years prior to parental divorce. Other studies observe that, before parental divorce, U.S. and U.K. children and adolescents suffer due to high levels of marital discord, ineffective and inconsistent parenting, diminished parental wellbeing, and reduced parent-child affection (Demo and Cox 2000; Rodgers and Pryor 1998). Taken together, these studies suggest that the alterations in family functioning that occur during a predivorce process lead to children witnessing their parents fighting, parents' emotional and psychological states deteriorating, and diminishing levels of parental warmth, affection, and supervision. It is important to note that these changing family dynamics contribute to children experiencing behavior problems prior to parental divorce, and that children's behavior problems, in turn, strain marital relationships, undermine parental well-being, and increase the chances of parental divorce (Acock and Demo 1994; Cherlin et al. 1991). Consequently, some researchers would argue that the negative effects of divorce on children begin well before an actual divorce occurs.

For both parents and children, the most difficult and stressful phase of the divorce process is usually the period leading up to and immediately following parental separation and divorce. The uncoupling process takes on several dimensions at this stage, as divorcing parents confront legal challenges and expenses, make their intentions public to family and friends, and redefine their roles as residential and nonresidential parents.

In addition, the process of unraveling and family dissolution continues, coupled with numerous potentially life-altering transitions for children. Following divorce, children live in many different family forms, but the most common pattern is they live with their mothers and have less contact with their fathers. In the United States, five of every six single-parent households are headed by a mother (U.S. Bureau of the Census 1998). As a result, a common alteration that children are forced to make is an adjustment to life without their father at home. Most children share time between the mother's household and the father's household, and families are creative in finding ways for children to maintain meaningful relationships with both parents. For example, children change residences to accommodate changes in their relationships with their parents, changes in parental employment, remarriage, and stepfamily formation (Maccoby and Mnookin 1992). Still, most children suffer from declining father involvement after divorce. National surveys indicate that more than one-fourth of children living in single-mother families never saw their fathers in the previous year, slightly more than one-fourth saw their fathers at least weekly, and among those children who maintain regular contact with their fathers, less than one-third had opportunities to spend significant amounts of time with them. There is evidence, however, that frequent father-child interaction and close relationships are more common in African-American families. Postdivorce father involvement is also higher among fathers who had very close relationships with their children prior to divorce, fathers who live near their children, and fathers who have joint custody (Arditti and Keith 1993; Mott 1990). These studies provide further evidence to suggest that characteristics of families prior to and after divorce ultimately influence the adjustment and well-being of children.

Individual Variation

Substantial research evidence shows that, on average, children who have experienced parental divorce score somewhat lower than children in first-marriage families on measures of social development, emotional well-being, self-concept, academic performance, educational attainment, and physical health (Amato 2000; Furstenberg and Kiernan 2001). This conclusion is based on group comparisons that consistently show small differences between the average adjustment level of children in first-marriage families and the average level for children whose parents have divorced. Equally important, but less well understood, is that children and adolescents in divorced families vary widely in their adjustment (Demo and Acock 1996). That is, many children exhibit delinquent behavior, difficulties with peers, and low self-esteem following their parents' divorce, while many others adjust readily, enjoy popularity with friends, and think highly of themselves. A useful way of thinking about this is that children's adjustment within any particular family structure (e.g., first-marriage families, divorced families, stepfamilies) varies along a continuum from very poor adjustment to very positive adjustment, with many children and adolescents faring better postdivorce than their counterparts living in first-marriage families. This latter point raises the possibility that in some cases, parental divorce may have positive effects on children. Children most likely to benefit from parental divorce include those who endured years of frequent and intense marital conflict (Amato and Booth 1997; Hanson 1999), and those who develop very close, mutually supportive, and satisfying relationships with single parents (Arditti 1999). These studies support the notion that preand postdivorce family environments (i.e., highly conflicted prior; supportive after) have great potential to assist in understanding how children will adjust to life after their parents' divorce.

The preponderance of scientific evidence thus suggests that popular impressions, media images, and stereotypes greatly exaggerate the effects of divorce on children. On average, there are small differences in emotional and social adjustment between children of divorce and children in intact families, and in some instances, parental divorce has a positive effect on children. Most children and adolescents experience short-term emotional, behavioral, and academic difficulties, which usually peak at the point in the divorce process when their parents physically separate and engage in legal battles related to divorce. These problems tend to subside with time, however. Children tend to be resilient, adapt well to most changes in their family roles and life situations, and exhibit normal adjustment (Emery and Forehand 1994). Still, a minority remains vulnerable. Following divorce, approximately 20 to 25 percent of children in divorced families experience long-term adjustment problems, compared to roughly 10 percent of children in first-marriage families (Hetherington and Stanley-Hagan 2000).

The children and adolescents who appear to be most vulnerable socially and emotionally are those who experience multiple transitions in parenting arrangements throughout their childhood. Research indicates that children who experience no changes in family structure (e.g., children who live continuously with both biological parents, or those who live their entire childhood with a single parent) have higher levels of adjustment (Demo and Acock 1996; Najman et al. 1997). As the number of parenting transitions increases, children's adjustment generally decreases, albeit modestly. Thus, children whose parents divorce (one transition) have somewhat lower adjustment; those who experience divorce and subsequent remarriage of their residential parent (two transitions) exhibit lower adjustment than those in the one transition group; and children who experience two or more parental divorces and/or remarriages have the lowest adjustment and most behavioral problems (Capaldi and Patterson 1991). Studies conducted in the United Kingdom, New Zealand, and Australia corroborate these findings (Rodgers and Pryor 1998). Again, there is wide variation among children who experience multiple family transitions, but the evidence suggests that each change in parenting arrangements represents a risk factor, thus increasing the likelihood that a child will react negatively to their postdivorce environment.

Interventions to Alleviate the Negative Effects of Divorce on Children

Overall, research suggests that family relationships and economic circumstances prior to and following divorce have considerable potential to influence child adjustment. Consequently, there are ample opportunities for intervention efforts that may offset some of these negative processes.

Given that a large proportion of U.S. children will experience divorce, an important research and public policy objective is the development of strategies to assist children during the divorce process. Although in some instances divorce may have positive effects for children (as in the case where exposure to intense and frequent fighting between parents is reduced), in many other situations, changing parent-child relationships, life transitions, and economic strains that accompany divorce present challenges to children's well-being. Social science research has successfully identified key factors accompanying divorce that negatively affect children, thus illuminating potential areas for intervention. That is, programs and policies can be developed to address the factors that ultimately compromise children's well-being during the divorce process.

Many states require divorcing parents to complete either a divorce mediation or parent education program (Emery 1995; Grych and Fincham 1992). These programs are designed to increase parents' understanding of the difficulties that their children may face during the divorce process. Parents are taught, for example, how to manage their conflict, avoid treating children like pawns in disputes, and to appreciate the importance of maintaining positive relationships with their children. Studies have shown that following a divorce, parents may find it difficult to maintain optimal parenting behaviors, such as monitoring their children's activities, providing warmth and support, and keeping consistent rules. Consequently, if programs for parents can intervene and educate divorced parents to the importance of maintaining positive parenting during stressful transitions, some negative effects on children may be mitigated.

Other possible areas for intervention include policies and programs that recognize the economic strain that divorcing parents, and especially the custodial mother, often face post-divorce. Studies have shown that custodial mothers often face dramatic economic losses following divorce, leading to feelings of stress that adversely affect parenting. Researchers have postulated that divorce is disruptive for children largely because the custodial parent faces a significant amount of economic stress in the time period immediately following the divorce (Furstenberg 1990). Economic loss may trigger multiple transitions for the child (e.g., moving, changing schools, taking in other household members), adversely affecting child well-being. Social policies should address the economic strain experienced by divorcing parents and recognize its potential to adversely affect family relationships.

Another important step toward reducing the negative effects of divorce on children involves the de-stigmatization of divorce. Given our cultural emphasis on the sanctimony of marriage and our cultural disapproval of divorce, many children suffer psychologically because they perceive that their family experiences are dysfunctional. Societal mores and cultural beliefs strongly devalue divorced families. Such families (in their many forms) are judged to be inferior to the traditional nuclear family headed by a male breadwinner and female mother and homemaker who live together from marriage until death, and who produce and rear children in an intact family environment. The popular North American culture, Hollywood movies, television sitcoms and talk shows, and best-selling books on how to survive divorce perpetuate these images and sensationalize the negative experiences of parents and children living in postdivorce families. In European countries, there is great concern about rising divorce rates, but divorce may be seen as more acceptable, at least in Sweden (Wadsby and Svedin 1996). Consequently, most U.S. children who experience parental divorce face the challenge of adjusting to new family arrangements and life situations in a society that has negative perceptions and stigmas associated with divorced families. Another way to allay negative feelings related to divorce, then, would be to counsel children regarding the normative process of divorce, to let them know that they are not alone as children of divorce, and to educate them regarding the healthy functioning of many divorced families. Finally, scholars in the United States, United Kingdom, and Australia have suggested that social service personnel and officials of the courts could be trained to be supportive of divorcing parents and their children as a means to strengthen family relationships and reduce feelings of stigma.

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wadsby, m., and svedin, c. g. (1996). "academicachievement in children of divorce." journal of school psychology 34:325–336.

david h. demo
andrew j. supple

EFFECTS ON COUPLES

Compared internationally, the United States has the highest divorce rate by a large margin—one and a half times that of the United Kingdom, approximately twice that of Japan, Germany, France, and Sweden, and more than seven times that of Italy. Although estimates vary, approximately half of all first-marriages and 60 percent of remarriages in the United States end in divorce. In the mid-nineteenth century approximately 5 percent of first marriages ended in divorce, so this dramatic increase in divorce has implications for all family members. Those family members most studied are children; yet the decision to end a marriage and the experiences that follow also affect the divorcing adults.

Explaining Adjustment to Divorce: Theoretical Perspectives

Numerous theoretical perspectives have been used to explain how adults adjust to divorce, including feminist theories, social exchange theory, family systems theory, social learning theory, and sociobiological theories. However, many researchers apply family stress theory to offer two general models of adult adjustment. The crisis model suggests that divorce poses a crisis for divorcing adults that results in temporary declines in well-being, but from which most individuals ultimately recover. The chronic strain model depicts divorce as setting a number of other stressful events into motion (e.g., moving to a new neighborhood, ongoing conflict between the former spouses, economic hardship) that send divorced individuals into a downward spiral from which they never fully recover. Research supports both models to some degree. In a review of research from the 1990s regarding the consequences of divorce, Paul Amato (2000) found that the crisis model best described the postdivorce experiences of some individuals, and the chronic strain model best described the experiences of others. He concluded that both models contained some truth, and that the determination of which model more accurately depicted postdivorce adjustment largely depended upon characteristics of the individuals studied (e.g., education, age, self-esteem), as well as the context in which the divorce occurred (e.g., social support networks, child custody status).

Adult Adjustment

Divorce affects the couple economically, mentally, emotionally, and physically. Divorce also influences the current and future relationships of the couple. Despite the predominant belief that only negative outcomes exist (deficit perspective), divorce also benefits some individuals. Best viewed as a process rather than a discrete event, divorce influences individuals before the divorce occurs, immediately following the divorce, and years later.

Economic outcomes. Because of the political and policy implications of the economic situation associated with divorce, much attention has focused on its economic impact. In the United States, Canada, and most other countries, women generally experience a decline in their economic situation following divorce, whereas men undergo lesser declines or slight increases in their economic status. It is important to note that differences in both the magnitude of these changes and the disparity between men and women's postdivorce economic outcomes have been debated (see Braver and O'Connell 1998, for a discussion of U.S. findings). However, research shows that German men fare better than U.S. men after divorce, and German women fare worse than U.S. women (Burkhauser et al. 1991). Similarly, Indian women generally fare worse economically than their U.S. counterparts, whereas Indian men experience little or no economic disruption following divorce (Amato 1994). Therefore, although magnitudes may differ, the same postdivorce economic pattern appears to occur cross-culturally.

Because divorce divides resources that originally went to one household, an immediate decline in the standard of living for both spouses results. How severe and how long the decline lasts affects couples' postdivorce adjustment due to the economic hardship imposed. It also is important to understand individuals' perceptions of the degree of economic hardship, as these perceptions affect adjustment more than objective measures of their economic situation. For example, Hongyu Wang and Paul Amato (2000) explained that an objective decline in standard of living may be viewed positively, if the more limited income also is accompanied by a gain in control over the income.

Mental and emotional outcomes. Studies demonstrate that divorced individuals exhibit higher levels of depression and anxiety than do individuals who are married, and those divorced also tend to have poorer self-concepts and exhibit more symptoms of psychological distress (compared with those who are married). Those with a history of two or more divorces report significantly more depression than either those with one divorce or those who are not divorced (Kurdek 1991), suggesting the cumulative nature of stress from divorce. Research findings are similar in other countries, as Amato (1994) found that two-thirds of divorced women in India suffer severe emotional problems. Further, Sheila Cotten (1999) noted that the common practice of categorizing divorced and widowed individuals into a single group underestimates the actual depression levels of divorced individuals, because widows often exhibit lower levels of depression and psychological distress. Consistent with the crisis model of divorce adjustment, depressive symptoms appear to peak shortly after the divorce and then gradually decline for most.

Physical outcomes. Divorced individuals also have more health problems and higher mortality rates than married or other nondivorced persons. Divorced adults exhibit more risk-taking behaviors (e.g., elevated rates of drugs and alcohol use/abuse). Particularly among those recently divorced, there is an increased risk for illness, likely due to poorer immune system functioning from the stress associated with divorce. (Kitson and Morgan 1990).

Relationship outcomes. Relationships and social networks are influenced in various ways by divorce. Divorced individuals generally experience more social isolation and have smaller social networks than do married individuals. This is explained in terms of them having less in common with married friends following divorce. Moreover, friendships can become divided between the couple like other the marital assets, as friends may choose sides.

In countries where divorce is still stigmatized, social isolation is more extreme. For example, in Japan divorced women experience discrimination in employment opportunities and future marital opportunities due to the impurity that divorce introduces into their family registry, and the effect of this impurity spills over to their children (Bryant 1992; Yuko 1998). Similarly, women in India are isolated following divorce, largely due to the principle of pativratya (i.e., that a woman should devote herself completely to her husband's needs, sacrificing her own if necessary). When a marriage ends, the assumption of fault resides with the wife. Also, family structure in India follows patriarchal lines, with many households consisting of a man, his wife, his sons, and the sons' wives and children. Following divorce, Indian men retain both their household and the support of their extended families, whereas Indian women leave the family household and become isolated from the entire family. Because re-marriage is not common in India, women are likely experience further social isolation (Amato 1994).

Coparental relationships also are affected by divorce, which has a significant impact on children. Although coparental interactions in marriage are generally cooperative and supportive (Jain, Belsky, and Crnic 1996), coparenting after divorce is likely to be less cooperative and more conflicted. Although the amount of conflict does not appear to be detrimental to adjustment, coparental relationships that are high in hostility are harmful to the parties and are detrimental to their postdivorce adjustment (Ahrons 1994; Buehler and Trotter 1990).

Most divorced individuals ultimately remarry and usually do so within four years (Coleman, Ganong, and Fine 2000). Remarriage rates (like divorce rates) are higher in the United States than anywhere else; however, the trends are similar cross-culturally. However, remarriages are less stable than first marriages, a finding that is generally attributed to the fact that those having experience with divorce are more likely to see divorce as a viable option in remarriage. Therefore, divorce appears to influence future marital relationships, making them less stable and more vulnerable to dissolution.

Positive outcomes. Most studies to date have looked for, and found, primarily negative outcomes from divorce. The few studies that have investigated the potential benefits of divorce show that, particularly for women, divorce can be a positive experience (Amato 2000). If the marriage was highly conflictual, ending the marriage can relieve stress in all family members. Also, an individual's sense of having successfully survived divorce is associated with increased self-confidence and efficacy, particularly for women.

Factors Influencing Adjustment

Numerous factors affect the ways in which couples adjust to divorce. These include both personal factors (those that reside within or are inherent to individuals) and contextual factors (those that reside outside individuals).

Personal factors. Several personal characteristics influence adjustment to divorce, such as demographic characteristics (i.e., age, education level, employment, and socioeconomic status). For example, some studies found that older individuals have more difficulty adjusting, due to their limited postdivorce options (e.g., employment, remarriage) (Kitson and Morgan 1990). Other studies found better adjustment among older divorced individuals, because they had fewer coparenting issues and conflicts due to children being older. Higher education, higher socioeconomic status, and being employed are consistently associated with better postdivorce adjustment among adults. It is likely that employment contributes positively to adjustment because more sources of social support are available and less economic hardship is experienced.

Individuals' levels of preseparation psychological functioning also affect divorce adjustment (Hetherington, Law, and O'Connor 1997; Tschann, Johnston, and Wallerstein 1989). Adults who have better coping skills and higher levels of emotional stability and psychological functioning before the divorce are generally more well-adjusted afterwards. Individuals who have a higher sense of self-mastery and self-esteem also experience higher levels of well-being following divorce.

Whether the individual initiated the divorce is another factor affecting adjustment. Spouses typically do not emotionally leave the marriage simultaneously and, therefore, may experience different trajectories in their adjustment. The person who initiates the divorce often mourns the loss of the marriage before the legal divorce takes place; however, noninitiators can experience surprise when the request for a divorce surfaces, and they then begin to consider the end of the marriage—when the initiator is already on the road to recovery.

Similarly, individuals' beliefs about divorce can affect their postdivorce adjustment. Those with more nontraditional views about marriage and who look at divorce more favorably exhibit better adjustment than do those who hold more traditional views about marriage and believe that divorce is unacceptable.

The degree of attachment to the former spouse also can affect adjustment. Research shows that cooperative postdivorce relationships are both possible and healthy for the couple, and particularly for parents (Ahrons 1994). However, when one or both spouses remain preoccupied with their former spouse (with feelings of either love or hate), postdivorce adjustment is hindered. It is interesting to note that Carol Masheter (1997) found that unhealthy (preoccupied) postdivorce attachment was more important to postdivorce wellbeing than was the amount of hostility in the post-divorce relationship.

Contextual factors. There are a number of contextual factors that affect postdivorce adjustment, such as the amount of social support both perceived and received by divorced individuals. Those who are less socially involved and more socially isolated following divorce generally have a more difficult time adjusting. Some research has proposed that the benefit of social involvement stems from the link between social involvement and attachment to the former spouse (Tschann, Johnston, and Wallerstein 1989). Higher levels of social involvement generally are associated with lessened attachment to the former spouse, and as noted, less attachment facilitates healthy postdivorce adjustment. However, Wang and Amato (2000) suggested that some social support comes with a price, including feelings of guilt, dependence on others, or criticism from the giver of the support, particularly if the support comes from kin. The differing influences of support are found in studies of other countries as well, as Frode Thuen and O. J. Eikeland (1998) found similar results among Norwegian divorced couples.

The most influential form of social support comes in the form of new relationships. Research consistently shows that new romantic relationships, both dating relationships and remarriages, are associated with better postdivorce adjustment for both men and women (Hetherington, Law, and O'Connor 1997).

Children, especially when older, also can serve as sources of social support for divorcing parents. This is particularly true of women, because they commonly retain custody of children. However, children also can be a source of postdivorce stress, as the added complications of maintaining the co-parental relationship can result in stress for the divorcing parents. Further, reduced contact and influence by noncustodial parents (usually fathers) can be a source of stress for custodial parents, as the latter parent believes that they must go it alone (Arendell 1995). For noncustodial fathers, reduced contact is associated with higher levels of depression and poorer postdivorce adjustment.Cultural factors. Adjustment is affected by the amount of stigma associated with divorce, the opportunities available (socially and economically) for divorced individuals, and differing legal contexts. As noted, divorce is associated with more social stigma in certain countries (e.g., India, Japan) and social opportunities in such countries generally are more limited. Divorced women in India have difficulty finding other single mothers with whom to develop a support network. They generally are reluctant to seek friendships with Indian men out of a concern that their efforts at friendship might be misinterpreted; employment and remarriage rates for Indian women are lower than those of U.S. women. Divorced individuals (particularly women) who reside in countries where divorce is less common and more stigmatized generally fare worse than individuals residing in countries where divorce is more common and less stigmatized (e.g., the United States).

The differing legal contexts of divorce can be influential to adult adjustment. Mark Fine and David Fine (1994) noted that most countries in Western Europe (with the exception of Ireland, which did not allow divorce until 2000) have moved from fault-based, punitive divorce laws to no-fault divorce laws, making divorces less painful to obtain. Such changes have had ramifications for divorce outcomes, most notably financial settlements. Since the 1960s, property settlements have become more egalitarian and awards of alimony have dramatically decreased, with the goal being to promote self-sufficiency for both divorcing spouses. For example, France has a system in which spousal support is rarely ordered; however, in the few rare cases that support is granted, a lump-sum payment is made at the time of the divorce, so continuing contact (and presumably, continuing conflict) between former spouses is minimized. Sweden has adopted an even more extreme view of postdivorce self-sufficiency, virtually eliminating spousal support altogether and declaring pensions to be individual property and therefore not divisible in the divorce settlement.

Although cross-culturally property settlements have become more egalitarian, in Australia these property settlements are largely determined by the future needs of the children. The future needs of spouses typically are not considered, and settlements also ignore any nonfinancial contributions of either party (e.g., stay-at-home mothers) when dividing marital assets (Sheehan and Hughes 2000). Similar neglect of nonfinancial investments during marriage occurs in Tanzania, where legal decisions through the 1980s predominantly have held that domestic contributions should not be considered in the division of marital property (Mtengeti-Migiro 1990). Thus, legal practices often ignore the contributions of women to marriage, reducing their post-divorce awards. Yet, the prevailing mood has been one of promoting self-sufficiency following divorce. This contradiction between behavior and mood, in turn, can result in a more difficult adjustment process, particularly for women.

Methodological Issues in Divorce Research

To date, most research regarding divorce and its impact on adults has assumed a deficit perspective— divorce is bad and has a negative effect on families. This perspective is reflected in the questions asked, the outcomes investigated, results showing negative outcomes, and the interpretation of these results. As noted, cross-cultural studies that investigate the potentially positive effects of divorce find that divorce can increase self-confidence, self-efficacy, well-being, and relief from a bad marriage for some. Therefore, future research should aim to further explore the range of influences of divorce on adults.

Because there is wide variation among divorced individuals in their postdivorce adjustment, simple comparisons between divorced and nondivorced individuals should be undertaken with caution. Just as divorce is best conceptualized as a process, adjustment to divorce also is a process, and studies show that the amount of time since divorce affects adjustment. However, many studies fail to examine time, ignoring the heterogeneity of the adjustment of divorced couples. Future research should investigate the multiple factors that aid or hinder adjustment, and should consider variations in the trajectory of the adjustment process among divorcing couples.

Despite variations in the structure and function of families in different countries, divorce is experienced by an increasing number of families. Data from the National Center for Health Statistics indicate that the annual number of divorces in the United States alone has climbed from 158,000 in 1921 to 1,163,000 in 1997, an increase of more than 700 percent (Norton and Miller 1992; MonthlyVital Statistics 1999). In addition, it should be noted that the latter figure underestimated of the actual number of divorces in the United States, as it failed to include divorce figures from all fifty states. Given the magnitude of its occurrence, divorce and its impact on divorcing couples continues to be an area worthy of investigation. Because of the policy and political implications, greater care is warranted in examining the complexity inherent in this process.

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EFFECTS ON PARENTS

Half of the parents sixty years and older with ever-married children have experienced a child's divorce, thus divorce is a common event for a large proportion of people in middle age and old age (Spitze et al. 1994). Nevertheless, studies of divorce's effects upon parents has been overshadowed by the large literature on its effects upon children of the divorcing parents. When studies of the parents of divorced individuals are reported, parents are usually depicted in the context of being a grandparent, a role that is derived from and regulated by their child. This research concentrates upon the parents and adult children who have minor children. Whereas most research on the effects of divorce focuses on the adaptation of children of divorce, there has been increasing interest in the effects an adult child's divorce may have on members of the extended family.

Research Perspectives

The effects of divorce on parents are most frequently studied from a resource perspective by focusing on the exchanges taking place between parents and their divorcing children (Spitze et al. 1994). The studies are based upon the assumption that as children's marriages dissolve, they will turn to their parents for help (Johnson 1988a). An alternate situation may occur, however, particularly for older parents who are in need of help. A child going through a divorce may not be readily available to offer support to them because of the demands and stressors of the divorce process.

Other researchers maintain that conceptions of continuity provide an alternative but less common perspective on the adult children and their parents (Rossi and Rossi 1990). This focus assumes that divorce has no discernable effects on the relationship between the adult child and his or her parents. Advocates of this perspective propose that there may be some changes in the level of contacts and supports, but there is no evidence of changes in the level of closeness and contact (Umberson 1992).

When minor children are present, the continuity perspective is difficult to sustain as marriages dissolve. One spouse, usually the husband, leaves the household, and in the process, the quality of parenting changes as one parent is performing the role previously performed by two people. This situation can have major repercussions not only on the former nuclear family but also on grandparents and the wider kinship group. The custodial parent's extended family becomes the primary sphere of activity, as members of the ex-spouse's kinship group become more distant.

The Post-Divorce Parent-Child Relationship

Researchers on the relationship between parent and adult child have diverse views. On one hand, those in human development tend to take a positive view of intergenerational relationships by emphasizing the strong bonds of affection and solidarity between generations. In such an environment, when a child is going through the divorce process, a parent is a potential source of help and one who can ease the strains inherent during this major change in family life. On the other hand, other researchers (Hess and Waring 1978) speak of the inherent tensions and constraints between parent and adult child in normal times which may become magnified during the divorce process. The contradictory research findings between love and attachment versus tensions and conflict may reflect the major changes occurring during the divorce process and the reorganization of a child's family.

The divorce of a child can be a major event (in terms of stress) not only for divorcing partners, but also their parents, particularly if grandchildren are present. These major changes occur during the divorce process in a social limbo in which there are few guidelines on how to behave: even whether one should act pleased or relieved. The cultural context adds to the relatively normless environment of the divorce process. Mainstream Western values endorse the rights of the individual to be independent and self-reliant. Although a child's independence is extolled, some form of dependence may develop as a divorcing child turns to parents for help. In keeping with the adult child's right to independence, parents usually adhere to the norm of noninterference in their child's life, a value stance that must be discarded as parents take a more active helping role in their child's household.

As the child's household becomes more public and subject to parental scrutiny, the greater the parents' involvement, the more they observe what is going on in what was once a private household (Johnson 1988a, 1988b). Thus, both parents and divorcing children are placed in an ambivalent situation. If minor children are involved, grandparents are expected to help. Although such demands are more often placed upon the maternal grandparents, most maternal and paternal grandparents resist assuming a parental role, yet they recognize their responsibility to help. A common theme often expressed is: "If I do some things for them, I may have to do it all. If I don't help, I may lose them." This parental reluctance has rarely been discussed in the literature. One exception is Karl Pillemer and Jill Suitor's (1991) article "Will I Ever Escape My Child's Problem?," one of the few reports on the underside of the parent-adult child relationship.

Parents' Responses to Children's Needs

Because of custody relationships, sons and daughters face markedly different situations that have repercussions on their relationship with parents. The parent-son relationship and the parent-daughter have markedly different functions. Because custody is generally granted to the mother, her parents are usually a major source of support. In the process, they have no problem gaining access to the grandchildren. These parents may have to extend not only financial assistance but also emotional support to compensate for the loss of one parent in the household (Johnson 1988b; Hamon 1995).

In contrast, men's parents usually must gain access to the grandchildren through a former daughter-in-law, to whom they are no longer legally related after a divorce (Johnson 1988b). Some paternal grandparents explicitly retain a strong relationship with a former daughter-in-law sometimes at the expense of their relationship with their son. If needed, paternal grandparents can also compensate for a son's deficiencies as a parent, or they may strengthen their son's attentiveness to his children.

Divorce is a dynamic series of events as households dissolve, affinal kin (relatives by marriage) are no longer related, and new kin are added with remarriage. The individuals involved must construct new roles, redefine relationships, and restructure their lives. The relationship between parents and children is particularly interesting, because children assume a new life style that may be at odds with their parents' values. Because most parents try to maintain a noninterfering stance, their child usually must take the initiative in seeking help. Most parents may be responsive to the needs of their child and grandchildren, but they resist having to act as a parent in terms of disciplining and fulfilling day-to-day instrumental care.

Intergenerational Exchanges

Age and gender are factors that influence the relationship between parent and adult child. In later life, those with adult children found that divorce had a sizable effect on the parent-child relationship in terms of relationship qualities and contact (Johnson 1988b). The negative effects were stronger between father and child than between mother and child. If divorced fathers shared a residence with their child, they were less likely to be depressed than the non-resident fathers (Shapiro and Lambert 1999; Schone and Pezzin 1999). The age of the ever-divorced father had negative effects on care-giving and economic ties between parent and child. Likewise, Teresa Cooney and Peter Uhlenberg's (1990) study showed that divorced men experienced long-term negative effects on the frequency of contact between older men and their children, and children were less likely to be considered as potential caregivers. The gender of the divorcing child has also been studied: for example, daughters received more help from their parents than sons (Johnson 1988a).

Divorce can affect kinship networks positively as both divorcing men and women rely on kin for practical aid. Males turn to kin in the early stages of the divorce process, whereas women seek long-term assistance. Leigh Leslie and Katherine Grady (1985) found that one year after a divorce, social networks of divorcing individuals become more homogeneous with increased numbers of supportive kin.

A qualitative study of fifty divorces in middle-class suburbs (Johnson 1988a, 1988b) found that the relationship between parent and child varied by the organizational emphasis during the structural reorganization of the post-divorce family networks. First, those divorcing parents, who placed an emphasis upon the privacy of an abbreviated nuclear family, were relatively remote from parents, and they were likely to remarry over a three-year period. Second, others emphasized the generational bond and the solidarity with their parents. They usually received support from parents. Third, those who remarried tended to form loose-knit networks that incorporated former relatives of divorce and remarriage. These respondents tended to maintain distant but cordial relationships with their parents.

Surrogate Parenting

Major strains on the parent-child relationship after divorce comes in those situations when these adult children are no longer able to perform the parent role. There has been heightened interest in a recent phenomenon of grandparents assuming the role of surrogate parents. Such arrangements are vulnerable, because of economic problems and difficulty accessing entitlements. A North Carolina survey of 25,000 households found that of the grandparents who were sole surrogate parents of grandchildren, 42 percent lived in poverty and another 15 percent were "near poor" (Shone and Pizzin 1999). Despite the interest in this family arrangement, demographers find that surrogate parenting is rare in the United States. For example, in ongoing research on 160 African-American families, no one was currently a surrogate parent at the time of the interview, and only a few had been in the past.

Conclusion

The research literature on divorce's effects on aging parents is not large, and most reports focus on supports between generations rather than relationship qualities and how they change over time. Nevertheless, the existing literature indicates that divorce is a stressful process that affects divorcing individuals and their children as well as their parents. The divorce process has a stressful beginning, but over a year's time, the situation—for most— stabilized: most parents provided assistance to children when needed; the stressors on the older people had diminished.

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Divorce

West's Encyclopedia of American Law
COPYRIGHT 2005 The Gale Group, Inc.

DIVORCE

A court decree that terminates a marriage; also known as marital dissolution.

A divorce decree establishes the new relations between the parties, including their duties and obligations relating to property that they own, support responsibilities of either or both of them, and provisions for any children.

When a marriage breaks up, divorce law provides legal solutions for issues that the husband and wife are unable to resolve through mutual cooperation. Historically, the most important question in a divorce case was whether the court should grant a divorce. When a divorce was granted, the resolution of continuing obligations was simple: The wife was awarded custody of any children, and the husband was required to support the wife and children.

Modern divorce laws have inverted the involvement of courts. The issue of whether a divorce should be granted is now generally decided by one or both of the spouses. Contemporary courts are more involved in determining the legal ramifications of the marriage breakup, such as spousal maintenance, child support, and child custody. Other legal issues relating to divorce include court jurisdiction, antenuptial and postnuptial agreements, and the right to obtain a divorce. State laws govern a wide range of divorce issues, but district, county, and family courts are given broad discretion in fixing legal obligations between the parties.

In early civilizations, marriage and marriage dissolution were considered private matters. Marriage and divorce were first placed under comprehensive state regulation in Rome during the reign of Augustus (27 b.c.–a.d. 14). As Christianity spread, governments came under religious control, and the Roman Catholic Church strictly forbade divorce. The only exception to this ban was if one of the parties had not converted to Christianity before the marriage.

During the 1500s, the Protestant Reformation movement in Europe rejected religious control over marriage and helped to move the matter of divorce from the church to the state. European courts granted divorces upon a showing of fault, such as adultery, cruelty, or desertion.

England struggled with the matter of divorce. From 1669 to 1850, only 229 divorces were granted in that country. Marriage and divorce were controlled by the Anglican Church, which, like the Roman Catholic Church, strictly forbade divorce. The Anglican Church allowed separations, but neither spouse was allowed to remarry while the other was still living.

The law of divorce in the American colonies varied according to the religious and social mores of the founding colonists. England insisted that its American colonies refrain from enacting legislation that contradicted the restrictive English laws, and a colonial divorce was not considered final until it had been approved by the English monarch. Despite these deterrents, a few northern colonies adopted laws allowing divorce in the 1650s.

Divorce law in the middle and northern colonies was often curious. Under one late-seventeenth-century Pennsylvania law, divorce seemed a mere afterthought: If a married man committed sodomy or bestiality, his punishment was castration, and "the injured wife shall have a divorce if required." In Connecticut, divorce was allowed on the grounds of adultery, desertion, and the husband's failure in his conjugal duties. In the Massachusetts Bay Colony, a woman was allowed to divorce her husband if the husband had committed adultery and another offense. A man could divorce if his wife committed adultery or the "cruel usage of the husband."

After the Revolutionary War, divorce law in the United States continued to develop regionally. The U.S. Constitution was silent as to divorce, leaving the matter to the states for regulation. For the next 150 years, state legislatures passed and maintained laws that granted divorce only upon a showing of fault on the part of a spouse. If a divorce were contested, the divorcing spouse would be required to establish, before a court, specific grounds for the action. If the court felt that the divorcing spouse had not proved the grounds alleged, it would be free to deny the petition for divorce.

The most common traditional grounds for divorce were cruelty, desertion, and adultery. Other grounds included nonsupport or neglect, alcoholism, drug addiction, insanity, criminal conviction, and voluntary separation. Fault-based divorce laws proliferated, but not without protest. In 1901, author james bryce was moved to remark that U.S. divorce laws were "the largest and the strangest, and perhaps the saddest, body of legislative experiments in the sphere of family law which free, self-governing communities have ever tried."

In 1933, New Mexico became the first state to allow divorce on the ground of incompatibility. This new ground reduced the need for divorcing spouses to show fault. In 1969, California became the first state to completely revise its divorce laws. The California Family Law Act of 1969 provided, in part, that only one of two grounds was necessary to obtain a divorce: irreconcilable differences that have caused the irremediable breakdown of the marriage, or incurable insanity (Cal. Civ. Code § D. 4, pt. 5 [West], repealed by Stat. 1992, ch. 162 [A.B. 2650], § 3 [operative Jan. 1, 1994]). In divorce proceedings, testimony or other evidence of specific acts of misconduct were excluded. The one exception to this rule was where the court was required to award child custody. In such a case, serious misconduct on the part of one parent would be relevant.

California's was the first comprehensive "no-fault" divorce law, and it inspired a nationwide debate over divorce reform. Supporters of no-fault divorce noted that there were numerous problems with fault-based divorce. Fault-based divorce was an odious event that destroyed friendships. It also encouraged spouses to fabricate one of the grounds for divorce required under statute. No-fault divorce, conversely, recognized that a marriage breakdown might not be the result of one spouse's misconduct. No-fault divorce laws avoided much of the acrimony that plagued fault-based divorce laws. They also simplified the divorce process and made it more consistent nationwide, thus obviating the need for desperate couples to cross state lines in search of simpler divorce laws.

In 1970, the Commissioners on Uniform State Laws prepared a Uniform Marriage and Divorce Act, which provides for no-fault divorce if a court finds that the marriage is "irretrievably broken" (U.L.A., Uniform Marriage and Divorce Act §§ 101 et seq.). Such a finding requires little more than the desire of one spouse to end the marriage. Many state legislatures adopted the law, and by the end of the 1970s, nearly every state legislature had enacted laws allowing no-fault divorce, or divorce after a specified period of separation. Some states replaced all traditional grounds with a single no-fault provision. Other states added the ground of irreconcilable differences to existing statutes. In such states, a divorce petitioner remains free to file for divorce under traditional grounds.

Most states allow the filing of a divorce petition at any time, unless the petitioner has not been a resident of the state for a specified period of time. Some states require a waiting period for their residents. The waiting period can range from six weeks to two or three years.

Illinois and South Dakota maintain the strictest divorce laws. In Illinois, a marriage may be dissolved without regard to fault where three conditions exist: the parties have lived apart for a continuous period of two years; irreconcilable differences have caused the irretrievable breakdown of the marriage; and efforts at reconciliation would be impracticable and not in the best interests of the family (Ill. Rev. Stat. ch. 750 I.L.C.S. § 5/401(a)(2)). In South Dakota, irreconcilable differences are a valid ground for divorce, which suggests some measure of fault blindness (S.D. Codified Laws Ann. § 25:4-2). However, irreconcilable differences exist only when the court determines that there are "substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved" (§ 25:4-17.1).

In Minnesota, the statute covering dissolution of marriage reads like a primer on no-fault divorce. Minnesota Statutes Annotated, Section 518.05, defines dissolution as "the termination of the marital relationship between a husband and wife" and concludes that a divorce "shall be granted by a county or district court when the court finds there has been an irretrievable breakdown of the marriage relationship." "Irretrievable breakdown" is left undefined in the statute. In Texas, the no-fault statute is titled "Insupportability." This law provides that on petition by either party, "a divorce may be decreed without regard to fault if the marriage has become insupportable because of discord or conflict of personalities" that destroys the purpose of marriage and renders reconciliation improbable (Tex. Fam. Code Ann. § 3.01 [West]).

No-fault is not without its detractors. Some critics argue that strict, no-fault divorce can provide a cover for serious marital misconduct. By refusing to examine the marital conduct of parties in setting future obligations, some states prevent spouses, usually impoverished wives, from exposing and receiving redress for tortious or criminal conduct. In response to this problem, the vast majority of states have abolished statutes that prevent one spouse from suing the other. However, tort claims for marital misconduct are often treated with suspicion, and juries are seldom eager to settle marital discord. A marital tort claim is also subject to business judgment: If the case does not appear cost-effective, an attorney might be reluctant to accept it.

Fault has survived in some aspects of divorce proceedings. It was once relevant to a decree of divorce and irrelevant to such matters as child custody and property divisions. Under current trends, marital misconduct is irrelevant to the divorce itself, but it may be relevant to related matters such as child custody, child support and visitation rights, spousal maintenance, and property distribution.

A recent movement in a small number of states has sought to reintroduce fault as an element in divorce proceedings. In 1997, Louisiana approved a covenant marriage law that is designed to provide an alternative to the traditional method for obtaining a marriage license. La. Rev. Stat. Ann. §§ 9:272-75, 9:307-09 (West Supp. 2003). Under the covenant marriage law, couples who wish to obtain a marriage license must first enter pre-marriage counseling, and then must provide an affidavit from a marriage counselor stating that they have completed this counseling. Once the couple is married, the covenant marriage does not differ from a traditional marriage until the potential dissolution of the marriage. Before partners to a covenant marriage may divorce, they must complete pre-divorce counseling and must provide an affidavit stating that the counseling has taken place. The statute is designed to make it more difficult to obtain a so-called "quickie" divorce.

The introduction of covenant marriage as an alternative to the traditional marriage agreement comes in the wake of several studies regarding the implications of divorce on children. Studies have shown that the economic standard of living for divorced women and children of a marriage decrease significantly after the divorce, while the standard of living for men increases. Likewise, other studies have shown that children of divorced parents are less likely to marry, have less education, and are more likely to abuse drugs and alcohol later in life.

In response to these and similar statistics, legislatures considered several means by which they could curb the climbing rate of divorce. Highly restrictive provisions on divorce, including the elimination of no-fault divorce, failed to pass any state legislature. Louisiana's covenant marriage law represents a compromise in that it leaves the decision to enter into such a marriage up to the couples. Several states in 1997 and 1998 considered enacting similar laws, but only Arizona and Arkansas have done so.

Covenant marriage laws also do not appear popular with couples in the three states that have adopted such laws. According to an article in the New York Times, only three percent of couples in Louisiana and Arizona have chosen to pursue this type of marital agreement, and studies show that tougher divorce laws have failed to gain popularity in those states. Moreover, several commentators have noted that the divorce rate in Louisiana and Arizona is not likely to decrease even with these laws in place.

Other states that have not enacted covenant marriage laws have considered other methods to discourage divorce. Several states have included provisions that encourage couples to seek pre-marital counseling before entering into the marriage. Unlike the covenant marriage laws, these provisions do not mandate such counseling, and they leave the decision to pursue counseling to the individual couples. The various statutes provide a number of incentives for seeking counseling, including, for example, reduction in the cost for a marriage license upon completion of counseling.

Historically, custody of the children of divorcing parents was awarded to the mother. Today, courts exercise their discretion in awarding custody, considering all relevant factors, including marital misconduct, to determine the children's best interests. Many parents are able to reach settlements on custody and visitation through mediation. Joint custody is a popular option among conciliatory spouses. Child custody is, however, a frequent battleground for less-than-conciliatory spouses.

In determining child-support obligations, courts generally hold that each parent should contribute in accordance with his or her means. Child support is a mutual duty. However, for pre-school children, the primary caretaker may not be obligated to obtain employment; in such cases, caretaking may be regarded as being in lieu of financial contribution.

All states have enacted some form of the Reciprocal Enforcement of Support Act, a uniform law designed to facilitate the interstate enforcement of support obligations by spouses and parents (U.L.A., Uniform Interstate Family Support Act of 1992). Such statutes prevent a nonsupporting spouse or parent from escaping obligations by moving to a different state. State laws also make nonsupport of a spouse or child a criminal offense, and uniform laws now give states the power to detain and surrender individuals who are wanted for criminal nonsupport in another state.

plans, and retirement benefits. The statutes that govern property division vary by state, but they generally can be grouped into two types: equitable distribution and community property. Most states follow the equitable-distribution method. Generally, this method provides that courts divide a divorcing couple's assets in a fair and equitable manner, given the particular circumstances of the case.

Some equitable-distribution states look to the conduct of the parties and permit findings of marital fault to affect property distribution. New Hampshire, Rhode Island, South Carolina, and Vermont have statutes that explicitly include both economic and marital misconduct as factors in the disposition of property. Connecticut, Florida, Maryland, Massachusetts, Missouri, Virginia, and Wyoming all consider marital conduct in property distribution. In Florida and Virginia, only fault relating to economic welfare is relevant in property distribution. Alaska, Kentucky, Minnesota, Montana, and Wisconsin expressly exclude marital misconduct from consideration in the disposition of marital property.

Equitable-distribution states generally give the court considerable discretion as to the division of property between the parties. The courts consider not only the joint assets held by the parties, but also separate assets that the parties either brought with them into the marriage or that they inherited or received as gifts during the marriage. Generally, if the separate property is kept separate during the marriage, and not commingled with joint assets like a joint bank account, then the court will recognize that it belongs separately to the individual spouse, and they will not divide it along with the marital assets. A minority of states, however, support the idea that all separate property of the parties becomes joint marital property upon marriage.

As for the division of marital assets, equitable-distribution states look to the monetary and nonmonetary contributions that each spouse made to the marriage. If one party made a greater contribution, the court may grant that party a greater share of the joint assets. Some states do not consider a professional degree earned by one spouse during the marriage to be a joint asset, but do acknowledge any financial support contributed by the other spouse, and they let that be reflected in the property distribution. Other states do consider a professional degree or license to be a joint marital asset and have devised various ways to distribute it or its benefits.

States that follow community-property laws provide that nearly all of the property that has been acquired during the marriage belongs to the marital "community," such that the husband and wife each have a one-half interest in it upon death or divorce. It is presumed that all property that has been acquired during the marriage by either spouse, including earned income, belongs to the community unless proved otherwise. Exceptions are made for property received as a gift or through inheritance, and for the property that each party brought into the marriage. Those types of property are considered separate and not part of the community. Upon divorce, each party keeps his or her own separate property, as well as half of the community property. True community property systems exist in Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, and Washington. Other states, such as Wisconsin, have adopted variations of the community-property laws.

alimony, or spousal maintenance, is the financial support that one spouse provides to the other after divorce. It is separate from, and in addition to, the division of marital property. It can be either temporary or permanent. Its use originally arose from the common-law right of a wife to receive support from her husband. Under contemporary law, men and women are eligible for spousal maintenance. Factors that are relevant to an order of maintenance include the age and marketable skills of the intended recipient, the length of the marriage, and the income of both spouses.

Maintenance is most often used to provide temporary support to a spouse who was financially dependent on the other during the marriage. Temporary maintenance is designed to provide the necessary support for a spouse until he or she either remarries or becomes self-supporting. Many states allow courts to consider marital fault in determining whether, and how much, maintenance should be granted. These states include Connecticut, Georgia, Hawaii, Iowa, Kansas, Kentucky, Maine, Massachusetts, Missouri, Nebraska, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Virginia, West Virginia, and Wisconsin.

Like the entire body of divorce law, the issue of maintenance differs from state to state. If a spouse is found to have caused the breakup of the marriage, Georgia, North Carolina, Virginia, and West Virginia allow a court to refuse maintenance, even if that spouse was financially dependent on the other. North Carolina requires a showing of the supporting spouse's fault before awarding maintenance. Illinois allows fault grounds for divorce but excludes consideration of fault in maintenance and property settlements. Florida offers only no-fault grounds for divorce but admits evidence of adultery in maintenance determinations.

An antenuptial agreement, or premarital agreement, is a contract between persons who plan to marry, concerning property rights upon divorce. A postnuptial agreement is a contract entered into by divorcing parties before they reach court. Traditionally, antenuptial agreements were discouraged by state legislatures and courts as being contrary to the public policy in favor of lifetime marriage. An antenuptial agreement is made under the assumption that the marriage may not last forever, which suggests that it facilitates divorce. No state expressly prohibits antenuptial agreements, but, as in any contract case, courts reserve the right to void any that it finds unconscionable or to have been made under duress.

State statutes that authorize antenuptial and postnuptial agreements usually require that the parties fulfill certain conditions. In Delaware, for example, a man and a woman may execute an antenuptial agreement in the presence of two witnesses at least ten days before their marriage. Such an agreement, if notarized, may be filed as a deed with the office of the recorder in any county of the state (Del. Code Ann. tit. 13, § 301). Both antenuptial and postnuptial contracts concerning real estate must be recorded in the registry of deeds where the land is situated (§ 302).

Jurisdiction over a divorce case is usually determined by residency. That is, a divorcing spouse is required to bring the divorce action in the state where he or she maintains a permanent home. States are obligated to acknowledge a divorce that was obtained in another state. This rule derives from the full faith and credit clause of the U.S. Constitution (art. IV, § 1), which requires states to recognize the valid laws and court orders of other states. However, if the divorce was originally granted by a court with no jurisdictional authority, a state is free to disregard it.

In a divorce proceeding where one spouse is not present (an ex parte proceeding), the divorce is given full recognition if the spouse received proper notice and the original divorce forum was the bona fide domicile of the divorcing spouse. However, a second state may reject the divorce decree if it finds that the divorce forum was improper.

State courts are not constitutionally required to recognize divorce judgments granted in foreign countries. A U.S. citizen who leaves the country to evade divorce laws will not be protected if the foreign divorce is subsequently challenged. However, where the foreign divorce court had valid jurisdiction over both parties, most U.S. courts will recognize the foreign court's decree.

The only way that an individual may obtain a divorce is through the state. Therefore, under the due process clause of the fourteenth amendment to the U.S. Constitution, a state must make divorce available to everyone. If a party seeking divorce cannot afford the court expenses, filing fees, and costs associated with the serving or publication of legal papers, the party may file for divorce free of charge. Most states offer mediation as an alternative to court appearance. Mediation is less expensive and less adversarial than appearing in public court.

In January 1994, the American Bar Association Standing Committee on the Delivery of Legal Services published a report entitled Responding to the Needs of the Self-Represented Divorce Litigant. The committee recognized that a growing number of persons are divorcing pro se, or without the benefit of an attorney. Some of these persons are pro se litigants by choice, but many want the assistance of an attorney and are unable to afford one. In response to this trend, the committee offered several ideas to the state bar associations and state legislatures, including the formation of simplified divorce pleadings and the passage of plainly worded statutes. The committee also endorsed the creation of courthouse day care for children of divorcing spouses, night-court divorce sessions, and workshop clinics that give instruction to pro se divorce litigants. Many such programs are currently operating at district, county, and family courts around the United States.

In the United States, divorce law consists of 51 different sets of conditions—one for each state and the District of Columbia. Each state holds dear its power to regulate domestic relations, and peculiar divorce laws abound. Nevertheless, divorce law in most states has evolved to recognize the difference between regulating the actual decision to divorce and regulating the practical ramifications of such a decision, such as property distribution, support obligations, and child custody. Most courts ignore marital fault in determining whether to grant a divorce, but many still consider it in setting future obligations between the parties. To determine the exact nature of the rights and duties relating to a divorce, one must consult the relevant statutes for the state in which the divorce is filed.

further readings

American Bar Association Standing Committee on the Delivery of Legal Services. 1994. "Responding to the Needs of the Self-Represented Divorce Litigant." Chicago: American Bar Association.

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Divorce And Separation

Divorce And Separation

Divorce and separation are legal actions that affect the civil marriage contract. In the United States, marriage, separation, annulment, and divorce are regulated individually by the states, although some federal benefits are available only to those who are legally married. In most cases, the person filing for the divorce or separation must be a resident for at least ninety days in the jurisdiction where the legal action is filed. Divorce is the formal dissolution of a marriage. Separation formalizes an agreement between a married couple who live apart. Some states and countries require some period of legal separation before divorce. For divorce and separation, the legal agreement may decide child custody, support, and visitation, division of assets and marital property, debt, marital home possession, and in cases of abuse, a protection order.

Separation does not end the marriage. People may choose separation over divorce for a variety of reasons, including religious or financial grounds; for the sake of the children; to retain health care, military, or tax benefits; or to live apart to assess if divorce is the best option. A separation agreement can be converted to a divorce decree.

Marriage annulment is a legal procedure declaring that the marriage never existed. The grounds for an annulment vary by state, but may apply to marriages involving underage partners (with the age varying by state), blood relatives with relationships closer than first cousins, or the absence of mental or physical capacity to consent to marriage. Other grounds for marriage annulment include intoxication, duress, refusal of intercourse, impotence, and bigamy. Most annulled marriages are brief. In the case of longer marriages the court divides the property of the parties and can determine rights and obligations related to the marital children. Children from an annulled marriage are legitimate. The history of marriage annulment dates back to Henry VIII (1491–1547), who had four of his six marriages annulled.

In the Catholic Church a member who wants to remarry after a divorce or to marry a divorced non-Catholic must have the prior marriage nullified. This is a religious rather than a legal process.

In the United States the trend since the 1960s has been toward no-fault divorces with joint legal custody of children. This contrasts with the former, adversarial process in which one person must prove a “fault” such as adultery, cruelty, desertion, habitual drunkenness, or insanity. Under no-fault laws the court must find irreconcilable differences or that the couple lived apart for a designated period of time. Critics blame no-fault divorce for the increasing divorce rate. In 1997, Louisiana was the first state to adopt “covenant marriages,” by which couples must enter into premarital counseling, and in the event that they eventually separate, undergo mandatory marital counseling, then wait two years after separation or provide proof of fault before divorcing.

In Canada the federal government sets divorce law that applies equally across provinces. No-fault divorce was adopted in 1986, allowing divorce for couples who have been separated for one year. In England marriage can be terminated by a “dissolution of marriage” or a “nullification,” the equivalent of an annulment in the United States.

In the United States only Massachusetts currently allows same-sex marriages. Canada has also recognized civil marriage between same sex partners. Many same-sex couples from other states travel to marry in Massachusetts, and the legal systems in their home states must determine how to deal with those relationships if the couples want to dissolve them, and what rights and responsibilities couples have upon dissolution, including custody and visitation rights for children born or adopted during the relationships. Similar challenges face states that grant to same-sex couples domestic partnerships, which outline the legal rights and responsibilities of those relationships but do not recognize them as marriages. In 1986 Congress adopted the Defense of Marriage Act (DOMA), which stated that no state has to recognize a marriage between persons of the same sex, even if the marriage was concluded or recognized in another state. In addition, the federal government may not recognize same-sex or polygamous marriages for any purpose, even if concluded or recognized by one of the states.

In the United States the divorce laws of the state the couple resides in, not the state they were married in, govern the dissolution; this is similar in many other countries. International divorces, in which the couple married in one country and then moved to another, face special difficulties. In addition, some countries that have religiously based governments, including Islamic and Jewish states, require religious divorces; others, including Japan and Taiwan, require only a registry office divorce, and only one spouse needs to file the paper. There are also “quickie” divorces in places such as the Dominican Republic, where there is little or no residence requirement.

Divorce rates have been rising in the United States, South Korea, and the nations of the European Union; Japan has the lowest rate. Divorce rates rose slowly from the 1860s to about 1919. There were more dramatic increases after both world wars, followed by a decrease and then a relatively stable divorce rate from 1950 to the mid-1960s. After a dramatic increase between the late 1960s through the mid-1970s, partially due to the introduction of no-fault divorces and economic prosperity, divorce rates in the United States declined, and this decline continues today. The divorce rate was 4.7 per thousand married women fifteen and older from 1990 to 1993, decreasing to 4.0 in 2001. In 2005 in the United States there were 7.5 new marriages for every 3.6 divorces per 1,000 people (Baca Zinn and Eitzen 2005).

In the United States, between 40 and 52 percent of all first marriages end in divorce, whereas in Europe the rate is one in three or four. Approximately 17 percent of married couples are separated at some time. In any given year, between 2 and 4 percent of marriages are granted legal separations. One in five marriages ends in divorce or separation in the first five years, one in three in the first ten years, and more than two-fifths within fifteen years. In the United States divorce rate is higher for remarried white women, whereas for African American women the rate is the same for once-wed or remarried women. In general, the divorce rate is lowest for white and Latino couples, and more than twice as high for African Americans.

A curvilinear relationship exists between income and divorce. Women in very low- and very high-income marriages have higher rates of divorce. Wives with higher education and husbands with higher income are less likely to divorce. Black and white couples who attend religious services together are less likely to divorce (Park 2004).

Age at first marriage is a strong predictor of marital stability. Almost 60 percent of those who marry at or before the age of eighteen dissolve their marriages within fifteen years. A factor accounting for both younger marriages and higher divorce rates is premarital pregnancy and birth. The presence of children also affects the likelihood of divorce. Childless couples divorce at a higher rate than those with children. And there is a curvilinear relationship between number of children and divorce: Divorce rates decrease as families have more children, up to four; those with more than four children are more likely to divorce than those without children. Families with children under three years old are less likely to divorce than those with children over fifteen.

Divorce is more common among those who lived together before marriage. About 40 percent of couples who lived together premaritally divorced after ten years of marriage, compared to 31 percent of those who did not live together.

Religion influences divorce. Twenty-four percent of all adults will experience a divorce over the course of their lifetime. The highest rate is for Jews (30%). Baptists have the highest rate among Christians (29%)—even those who identify themselves as “born again” have a higher than average divorce rate (27%). Protestants and Mormons have a rate of 25 percent, whereas Catholics have a rate of 21 percent (Baca Zinn and Eitzen 2005).

Ex-husbands generally experience an increased standard of living after divorce. They are most often the primary wage earners in the family, and after divorce more of their income stays with them. They have more money and leisure time available to them. About 85 percent of men do not seek primary physical custody of their children, so they have greater freedom for dating, furthering their education, travel, hobbies, and sexual relationships. After divorce, males often have difficulty maintaining a routine for eating, sleeping, shopping, cooking, and cleaning. They see their children relatively rarely, and thus experience isolation. The difficulty of adjusting to divorce results in higher rates of illness and death for men.

Typically, women experience a dramatic decline in their standard of living after a divorce—to about half what their living standard had been before divorce, or about half that of divorced men. To improve their situations, divorced women often rely on several sources of wealth, including alimony, which is awarded to 15 percent of divorced women. Equitable division of marital property assumes that men and women are equal at the time of divorce, but awarding primary residences to women assumes that they are able to pay the mortgages, an assumption that disadvantages women who work in the home or those who make low wages. Two-thirds of divorced mothers are awarded child support, but in at least 60 percent of the cases fathers are late with payments or do not pay at all. Women may also experience isolation and over-extension due to their child care, household, and wage-earning responsibilities.

Women also may benefit from divorce. Like men, they experience an increase in freedom, albeit freedom mediated by child and household responsibilities. Domestic violence lessens, and as the divorce rate rises there is a decrease in both suicide and murder rates of women. However, women in separated couples are the group at the greatest risk of assault and murder by intimates.

At various times in history conservative social critics have argued that divorce contributes to a negative decline in the American family, and that the lack of a male role model for children of divorce has a negative effect, and can lead to crime and delinquency. But research indicates that children are resilient in coping with a divorce, and that three out of four kids become healthy and competent adults. The large majority of children in divorced families do not experience severe or long-term problems. For those children in abusive families, the quality of family life may increase.

Girls seem to fare better than boys (Seltzer 1994). Antisocial behavior on the part of children in divorced families is related to lack of parental control rather than the divorce itself. Family size, too, influences children’s well-being after divorce—the larger the family, the greater the stress on single parents, which may negatively affect children. Race also affects children’s experience of divorce. African American children are more likely to be economically disadvantaged in society and may experience more detrimental effects of divorce.

Parental contact also affects children. Parents with higher socioeconomic status are more likely to have joint legal custody of their children, and so those fathers are more likely to spend time with their children. Contact with both parents helps children adjust favorably to divorce. Children fare better when parents live in the same geographic region, which facilitates visitation.

The economic status of the family importantly predicts the problems families and children face. Children in fatherless families are more likely to drop out of school, use drugs, and engage in delinquent behavior, but the underlying cause is not divorce, but poverty (Kimmel 2004).

Economic security needs to compensate for the drop in the standard of living for divorced families. This could include policies such as a living wage for all workers to counter the low wages that divorced women find themselves confined in. There should also be a safety net providing job training and societal assistance to women and children after a divorce. This assistance could take the form of job training, public employment, quality day care assistance, adequate diet support and medical care. All would reduce the stress on children and families experiencing divorce.

Morley, Jeremy. 2004. International Family Law. New York Law Journal, November 24.

Parke, Mary. 2003. Are Married Parents Really Better for Children? Couples and Marriage Research and Policy Brief. The Center for Law and Social Policy. http://www.clasp.org/publications/marriage_brief3_annotated.pdf.

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Divorce

Divorce

Definition

Divorce is the legal termination of a marriage.

Description

More than 1 million children each year experience their parents' divorce. Less than 60 percent of American children live with both of their biological parents; about 25 percent live with their biological mother only; and about 4 percent live with their biological father only. The remaining 11 percent live with step-families, adoptive parents, foster homes, or with other relatives.

In 2002 it was estimated that up to 30 percent (19.8 million) of children in the United States, representing 11.9 million families, lived in single-parent households. While the number of single mothers has remained constant through the 1990s and into the early 2000s at 9.9 million, the number of single fathers has grown from 1.7 million in 1995 to 2 million in 2002, according to data from the U.S. Census Bureau. In 2002, 19.8 million children lived with one parent. Of these, 16.5 million lived with their mother and 3.3 million with their father.

In 2002, fewer than half of single-parent children under the age of 18 received any financial support from the non-custodial parent. The income of more than one third of these households fell below the poverty level. The term "deadbeat dads" is often used in discussions about abandonment because most of the divorced parents who do not contribute financially to support their offspring are fathers.

Even though divorce rates peaked in 1979–81 and decreased slightly in the years following, half of all first marriages and 60 percent of second marriages end in divorce. The divorce process is often more emotionally traumatic for the children than for the parents, because children are less able to cope with the separation. About half of all children do not see their fathers following a divorce and only a small percentage have spent the night in their fathers' homes in any given month.

Divorce is the termination of the family as a unit. The effects of divorce on children can usually be seen long before the divorce itself, when conflict between the parents can cause behavior changes in the children, even in preschoolers. After the divorce, the children's sense of loss often increases, leading to great sadness, depression, and anxieties, especially on special occasions, such as birthdays, holidays, and school events. The children's emotions depend on their age, but common feelings include sadness, anger, and fear . Often these feelings are manifested in behavior changes that are also age-related. Children may grieve the loss of the "traditional" family, and they mourn the loss of the noncustodial parent, typically but not always, the father.

Common childhood and adolescent reactions to parental divorce include a continuing desire for the parents to reunite; fears of desertion; feelings of guilt over having been responsible for the divorce; developmental regression; sleep disorders ; and physical complaints. While researchers have found that some children recover from the trauma of divorce within one to three years, subsequent long-term studies have documented persistent negative effects that can follow a child into adolescence and beyond, especially with regard to the formation of intimate relationships later in life. The effects of parental divorce have been linked to phenomena as diverse as emotional and behavioral problems, school dropout rates, crime rates, physical and sexual abuse, and physical health. However, mental health professionals continue to debate whether divorce is more damaging for children than the continuation of a troubled marriage.

Infancy

Infants' reactions to divorce come from interference with the satisfaction of their basic needs. The removal of the noncustodial parent or increased work hours for the custodial parent can cause separation anxiety , while the parents' emotional distress tends to be felt by babies, upsetting their own emotional balance. The inability of infants to understand the concept of divorce makes the changes in their situation seem frighteningly unpredictable and confusing. Reactions include irritability, increased crying, fearfulness, separation anxiety , and sleep problems.

Toddlerhood

Toddlers may revert to an earlier development stage in such areas as eating, sleeping, toilet training , motor activity, language, and emotional independence. Other
signs of distress include anger, fearfulness, nightmares , fantasies, and withdrawal.

Preschool

In preschool-age children, continued self focus, coupled with a more advanced level of cognitive development , leads to feelings of guilt as these children may become convinced that they are the reason for their parents' divorce. Children at this age are also prone to powerful fantasies, which can include imagined scenarios involving abandonment or punishment. The disruption that follows divorce, particularly in the relationship with the father, also becomes an important factor for children at this age. Developmental regression may take the form of insisting on sleeping in the same room or bed as the parent; refusing to eat all but a few types of food; stuttering or reverting to baby talk; disruptions in toilet training; and developing an excessive emotional dependence on one parent.

School age

By the early elementary grades, children are better able to handle separation from the noncustodial parent. Their greater awareness of the divorce situation, however, may lead to elaborate and frightening fantasies of abandonment or of being replaced in the affections of the noncustodial parent. Typical reactions at this stage include sadness, depression, anger, and general anxiety. Disruption of basic development in such areas as eating, sleeping, and elimination is possible but less frequent than in younger children. Many children this age suffer a sharp decline in academic performance, which often lasts throughout the entire school year in which the divorce takes place.

Children in the upper elementary grades are capable of better understanding of the divorce. At this age, the simple fears and fantasies of the younger child are replaced by more complex internal conflicts, such as the struggle to preserve one's allegiance to both parents. Older children become adept at erecting defense mechanisms to protect themselves against the pain they feel over a divorce. Such defenses include denial, displacement of feelings, and physical complaints such as fatigue, headaches, and stomachaches. Children in the upper elementary grades are most likely to become intensely angry at their parents for divorcing. Other common emotions at this stage of development include loneliness, grief, anxiety, and a sense of powerlessness.

For teenagers, divorce is difficult because it is yet another source of upheaval in their lives. Teenage behavior is affected not only by recent divorces but also by those that occurred when the child was much younger. One especially painful effect of divorce on adolescents is the negative attitude it can produce toward one or both parents, whom they need as role models but are often blamed for disappointing them.

Teens are also prone to internal conflicts over their parents' divorce. They are torn between love for and anger toward their parents and between conflicting loyalties to both parents. Positive feelings toward their parents' new partners come into conflict with anxiety over the intimacy of these relationships, and the teenager's close affiliation with the custodial parent clashes with his or her need for increased social and emotional independence. Although children at all ages are distressed by parental divorce, during the teen years it can result in potentially dangerous behavior, including drug and alcohol abuse, promiscuous sexual activity, violence, and delinquency.

Children ages 12–15 need consistent support from both parents but may not accept equal time-sharing of their living arrangements. They may blame one or both parents and may become controlling by demanding to stay in one place or to switch residences constantly.

Youths ages 15–18 group may become focused on establishing their independence and on social and school activities, and they may become intolerant of their parents' problems. Although teens still needs parental support, they may also tire of worrying about one or both parents. Being able to listen to teens when they are able to talk about their feelings may be helpful. Although teens may want to see their parents happy, they may have mixed feelings about seeing their parents dating other people. They may feel that condoning parental dating would be disloyal to the other parent. Older teens who need help may have behavior problems, exhibit depression, show poor school performance, run away from home, or get into trouble with the law.

Common problems

Not all children react the same way when told their parents are divorcing. Some ask questions, some cry or get angry, and some initially do not react at all. Problems to watch for include trouble sleeping, crying, aggression, deep anger and resentment, feelings of betrayal, difficulty concentrating, chronic fatigue, and problems with friends or at school.

Experts agree that it is important for parents who are divorcing to avoid involving their children in their disputes or forcing them to choose sides, and parents are often advised to avoid criticizing their former mates in front of their children. In order for children to heal from the emotional pain of parental divorce, they need an
outlet for open expression of their feelings, whether it is a sibling, friend, adult mentor or counselor, or a divorce support group. Extended families can be a significant source of support for children, providing them with stability and with the reassurance that others care about them. Although parental divorce is undeniably difficult for children of all ages, loving, patient, and enlightened parental support can make a crucial difference in helping children cope with the experience both immediately and over the long term.

Parental concerns

The custodial parent should be aware of the effects of the divorce on the child and above all, should reassure the child that the remaining parent will not abandon them. It is also important to maintain as much normalcy as possible after a divorce by sticking to regular routines, such as meal times, bedtime, rules of behavior, and methods of discipline . Relaxing limits during a time of change can make children feel insecure.

When to call the doctor

Medical help may be needed if a child inflicts self-injury. Psychological counseling may also be needed to help the child understand and cope with the divorce. This is especially true if any of the common reactions last for an unusual amount of time, intensify over time, or if the child talks about or threatens suicide .

KEY TERMS

Custodial parent—A parent who has legal custody of their child or children.

Deadbeat dad—A father who has abandoned his child or children and does not pay child custody as required by a court.

Noncustodial parent—The parent who does not have legal custody of the child and does not live in the same home with the child. The noncustodial parent has financial responsibility for the child and visitation rights.

Resources

BOOKS FOR ADULTS

Hannibal, Mary Ellen, and Ina Gyemant. Good Parenting Through Your Divorce: How to Recognize, Encourage, and Respond to Your Child's Feelings and Help Them Get Through Your Divorce.New York: Marlowe & Company, 2002.

Samenow, Stanton. In the Best Interest of the Child: How to Protect Your Child from the Pain of Your Divorce. New York: Crown Publishers, 2002.

Wallerstein, Judith S., and Sandra Blakeslee. What About the Kids? Raising Your Children Before, During, and After Divorce. New York: Hyperion, 2003.

WEB SITES

"Promoting Mental Health for Children of Separating Parents." Canadian Paediatric Society, January 2004. Available online at <www.cps.ca/english/statements/PP/pp00-01.htm> (accessed November 24, 2004).

Ken R. Wells

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Divorce

Europe, 1450 to 1789: Encyclopedia of the Early Modern World
COPYRIGHT 2004 The Gale Group Inc.

DIVORCE

DIVORCE. Prior to the Protestant Reformation in the mid-sixteenth century, legal divorce, in the sense of complete dissolution of the marriage bond with the right to remarry, was impossible anywhere in Europe because the Catholic Church, which governed marriage formation, considered marriage a sacrament dissoluble only by the death of one of the spouses. Unhappy couples did, however, sometimes divorce informally. While the Reformation made divorce theoretically possible in most Protestant regions, judges' reluctance to grant divorces, coupled with economic barriers, meant that not until the late eighteenth century did more than a small number of couples divorce legally.

CATHOLIC EUROPE

Throughout the early modern period, canon law offered only two avenues for Catholics unhappy with their marriages: separation or annulment. A separation from bed and board (separatio a mensa et thoro) granted a spouse who could prove the other spouse's adultery or excessive cruelty (or, infrequently, heresy) permission to live separately and separated the spouses' finances, often giving the innocent spouse possession of the wife's dowry. Neither spouse could remarry, however, because the marriage bond remained intact. In contrast, an annulment allowed remarriage because it declared the marriage had never existed. It did so on the basis of one or more legal impediments to the union, primarily if the spouses were too closely related either by blood or by marriage or if one spouse had contracted an earlier and valid marriage, had taken religious vows, was under the age of twelve for girls or fourteen for boys at the time of the marriage, or had married under duress. Despite earlier claims, scholars have come to agree that the use of annulments as quasi-divorces was not widespread. Indeed, convinced that marriage preserved moral order by containing sexual activity, ecclesiastical courts made obtaining separations and annulments quite difficult by imposing strict formal and evidentiary standards.

People from all economic levels brought suits, but separations and annulments were most necessary for the wealthy, for whom marriage, as a union of property and families more than of individuals, needed clear legal resolution. Only annulment would allow subsequent legal marriage with legitimate children and enforceable property and political arrangements—as in the case of Henry VIII (1491–1547), who in 1527 sought an annulment of his eighteen-year marriage to Catherine of Aragon (1485–1536) to marry Anne Boleyn (1507?–1536). People, particularly women, tended to use legal separations to confirm an already existing situation and to improve their legal and financial positions. For example, a wealthy woman who had already left her financially irresponsible, adulterous,
and physically abusive husband might seek a legal separation to gain control of her dowry as well as to keep her husband from compelling her return. A poor couple generally only sought a separation or annulment when their marital situation caused a scandal and authorities intervened.

Unhappy spouses with little property, such as wage laborers, had an alternative to court: informal divorce. Authorities condemned these customs but could do little to stop them. Communities informally policed troubled marriages, enforcing conventional standards of marital behavior by sanctioning inordinately abusive or lazy husbands, disobedient wives, and adulterers of both sexes with penalties ranging from gossip to charivari, or ritual shaming. Neighbors acting as go-betweens might try to reconcile spouses, but they also might support spouses, and particularly abused wives, who left their marriages.

Desertion, sometimes by mutual agreement, was the most common means of dissolving a marriage. Poor communication exacerbated the lack of effective official oversight, enabling a spouse willing to start a new life in a distant location to make a new (though bigamous) marriage. The deserted spouse traditionally had to wait seven years for the absent spouse to be presumed dead before remarrying, but in practice many seem to have remarried much sooner, driven by economic needs. It appears that some communities condoned almost immediate remarriage, particularly when there were no children and multiple attempts at reconciliation had failed. Some couples lived separately in the same community, but they generally could not remarry. However, some people in isolated rural areas, such as seventeenth-century northern Spain, conceived of marriage as a contract that could be broken by the consent of the parties, who could then remarry at will.

As much as legal constraints, material circumstances severely limited both formal and informal marriage dissolution throughout the period, even where divorce became legal. Dissolving a marriage meant dissolving an economic unit outside of which it was difficult to survive. Both sexes initiated informal or formal dissolutions, but men more commonly did so, because they had wider employment opportunities. People who lived by working the land probably found it most difficult to separate or divorce. The association of military service and deserting a wife was well recognized, but some husbands deserted by finding jobs in distant cities. Women's well-known difficulty in supporting themselves without a husband, particularly if they had children, probably encouraged many wives to persevere in troubled marriages, sometimes despite life-threatening violence. Deserted wives, along with widows, appeared frequently on poor rolls.

RELIGIOUS REFORM

Rejecting church control of marriage, and with it the sacramentality and indissolubility of marriage, the Reformation legalized divorce with remarriage in most of Protestant Europe (with the major exception of England) by the mid-sixteenth century. For the next two centuries, however, divorce remained largely theoretical and unobtainable for most people.

Protestant joint lay-ecclesiastical courts, perhaps even more than their Catholic predecessors, sought to preserve marriage to promote its primary purposes of saving people from the sin of wantonness and social disorder. They made legal separation difficult and granted divorces only in cases of adultery or desertion, which struck at the heart of marriage in their eyes, never on the grounds of incompatibility and only rarely for extreme cruelty. Judges granted few divorces and frequently forced couples to reconcile. Scottish courts between 1658 and 1707, for example, granted a total of thirty-five divorces, fewer than one per year.

Divorce was punitive: usually only the innocent party could remarry and received custody of any children and control of most financial resources. A divorce suit often led to criminal prosecution for an adulterer, who could be punished with imprisonment or even death, as in Calvinist Geneva. In part because wives were subject to a stricter definition of adultery than husbands, men requested and received more divorces than women.

The Council of Trent's reconfirmation of marital indissolubility in 1563 meant that in areas that remained Catholic, legal divorce continued to be impossible. Despite this basic difference, sixteenth- and seventeenth-century Protestant and Catholic authorities approached the problems of marital breakdown and informal dissolution with similar efforts
at control and with similarly limited success. Linking marital harmony to social order, Catholic priests and Protestant pastors chastised spouses living apart privately and publicly at church, while magistrates of both confessions levied fines and even imprisoned those who refused to cohabit. Parish priests investigated the marital status of outsiders seeking to marry their parishioners, making bigamous remarriage after desertion more difficult. In Spain the Inquisition focused on rooting out bigamy, meting out one hundred lashes and three to five years in the galleys to men and banishment to women found guilty. A few Protestant and Catholic regimes for a time even created de facto divorce for adultery when they pursued and executed adulterers. Civic and religious institutions also developed to help unhappily married women, known in Italy as the malmaritate, offering refuge from abusive husbands and even assistance in seeking legal separations.

The effects of these efforts on actual behavior remain unclear. People still dissolved their marriages as before and even devised new ways. Some spouses in seventeenth-century Switzerland used notaries and written acts to divide their property and separate, while some eighteenth-century English husbands engaged in the infamous "wife selling" by "auctioning off" their wives on market day to prearranged "buyers."

SECULARIZATION

The eighteenth century, especially the latter half, saw the secularization of control of marriage in both Protestant and Catholic Europe, as civil powers eroded ecclesiastical control of marriage. In Catholic lands change was primarily institutional, leaving the content of the law largely unchanged, as in France where the monarchy claimed jurisdiction over such matters as marriages of minor children, bigamy, and separation. These institutional changes did, however, lay the groundwork for the French Revolution's legalization of divorce in 1792.

In Protestant regions encroachment of secular institutions eroded the influence of churchmen and with it their conception of marriage as a union based on duty, opening the way for a softer official attitude toward divorce. Sweden, for example, placed divorce under secular jurisdiction in 1734. Secular judges, influenced by Enlightenment ideas that love, respect, and companionship were central to marriage, became more willing to grant divorces and separations when these qualities were lacking, namely in cases of cruelty or even incompatibility. These broader grounds made legal divorce a possibility for many more people, particularly for women, who began to seek divorces in much larger numbers. At the same time proto-industrialization and urbanization loosened household economic ties, making it possible for more spouses, and especially wives, to dissolve their marriages.

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Divorce

Gale Encyclopedia of Psychology
COPYRIGHT 2001 The Gale Group Inc.

Divorce

The legal dissolution of a marriage.

The divorce rate in the United States began rising in the 1960s and continued for more than two decades, with a decline in the trend in the 1990s. In 1960 the divorce rate per 1,000 population was 2.6. By 1980, the rate had reached 5.2 and in 1990 dropped to 4.7. This decline continued to 4.3 in 1997. Based on current societal trends, researchers project that 40 to 50 percent of all first marriages in the United States will end in divorce.

Possible factors for the high incidence of divorce include the enactment of "no-fault" divorce laws that make it easier legally to get divorced; a decline in the number of couples who stay together for religious reasons; the increased financial independence of women; conflicts resulting from the growing number of dual-career marriages; and a greater social acceptance of divorce.

Divorce is generally preceded by a breakdown in communication between the partners. Research indicates that marriages may also breakdown because of the manner in which couples argue and attempt to repair their relationship after quarreling. Other factors leading to divorce include alcoholism and drug abuse, domestic violence , extramarital affairs, and desertion. Divorce generally causes significant stress for all family members. After the death of one's spouse, divorce is considered the single greatest stressor on the Holmes and Rahe Social Readjustment Scale, which assigns point values to a variety of stress-producing life changes. Both partners must make financial adjustments—an area of much bitterness during divorce proceedings. Social relationships with friends and family often change, and the newly divorced person will likely face the challenges and insecurities of dating. Divorced parents have to adjust to raising children on their own, adjust or adapt to noncustodial parenthood. In adults, divorce may cause feelings of guilt over one's share of the responsibility for a failed marriage, anger toward one's spouse, and feelings of social, emotional, and financial insecurity. Also common to divorce are feelings of anxiety, incompetence, depression , and loneliness.

Children—who are involved in 70 percent of American divorces— may be even more severely affected than their parents, although this also depends on such factors as custody arrangements and parental attitudes. Divorce often results in economic stress and disorganization for the family. Divorce is thought to be hardest on young children, who tend to blame themselves, fantasize that their parents will get back together, and worry about being abandoned. Sometimes the effects on younger children do not become apparent until they reach adolescence . Children who are teenagers at the time of the divorce are strongly affected as well. In one study, subjects who were in early adolescence when their parents divorced had trouble forming committed relationships ten years later. The effects of parental divorce on children have also been linked to phenomena as diverse as emotional and behavioral problems, school dropout rates, crime rates, physical and sexual abuse and physical health. However, the effects of divorce must be weighed against the difficulty of continuing to live in a household characterized by conflict and estrangement. Researchers have found evidence that of the two alternatives, divorce can be the less emotionally damaging one. After an initial period of turmoil, stability generally returns to the lives of adults and children. Both may function more competently than they did before the divorce and show improved self-esteem . Most divorced people remarry within three years, but many second marriages have not been found to be successful.

The prevalence of divorce has led to a number of prevention programs to train couples how to prevent divorce. Research indicates a small percentage of couples considering divorce seek counseling, usually six years after problems have developed in the marriage.

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divorce

divorce. Since the Roman catholic church has never recognized divorce, it was not available in Britain until after the Reformation. Henry VIII was technically never divorced—his marriages to Catherine of Aragon and Anne of Cleves were annulled—and thereafter England moved very cautiously indeed. Separation from bed and board was permissible in certain circumstances but without the right to remarry. But after Parliament in 1670 had passed an Act to allow Lord Roos to remarry after the notorious adultery of his wife, a loophole was opened. The number of divorces remained very small. The Church of England retained the ecclesiastical courts from the previous era and the case for ending a marriage had to satisfy canon law. Once the church courts had agreed that the marriage should end, only a private Act of Parliament could give effect to property settlements and issues of succession. Such Acts were expensive, faced a real possibility of failing to pass, and exposed the details of personal family relationships to public knowledge.

With the costs of a private Act so high, it is likely that many unhappy marriages endured or that informal and undocumented separations took place. The wish to divorce appeared to be present at all social levels. For example, there are references in the 16th cent. and later to the curiosity of ‘wife sales’ amongst the poor, an illegal practice fictionalized in Thomas Hardy'sThe Mayor of Casterbridge.

Divorce, although still expensive, became more generally accessible with the Matrimonial Causes Act of 1857, which applied to England and Wales. This Act incorporated the recommendations of the Campbell Commission, which had investigated the law relating to marriage. The Act established a Court for Divorce and Matrimonial Causes and allowed divorce on specified grounds. A husband could divorce on the grounds of adultery by a wife, but a wife had to prove that her husband had committed adultery aggravated by desertion, cruelty, incest, rape, sodomy, or bestiality before she could divorce. For those who could not afford to go to the new court, escape from the effects of a violent marriage or desertion was provided by an Act of 1878 which gave magistrates' courts power to recognize formal separation. But by 1913 there were still very few divorces—only 577 in England and Wales.

After the Reformation the situation in Scotland developed differently. Husbands and wives had equal access to divorce and procedures for rescinding a marriage could be initiated in the sheriff court by resident Scots. In the mid-19th cent. the costs of such a divorce were between £20 and £30.

Equality between the sexes was recognized by the Divorce Act of 1923, which made the grounds for divorce the same for both spouses. As a consequence, the number of divorces increased, although remaining relatively small. A major change towards lowering the cost of legal proceedings was incorporated into the Divorce Act of 1937, which also added habitual drunkenness and insanity to the grounds for divorce. Again the number of divorces increased and rose even higher after the Second World War, when those seeking divorce could apply for financial help under the legal aid scheme of 1948.

Until the Divorce Act of 1971 two features characterized divorce proceedings: the guilt of one partner had to be proved, and both partners had to agree to pursuing a divorce. The 1971 Act allowed divorce on the grounds of the irredeemable breakdown of the marriage, and the initiation of divorce proceedings by one partner even against the opposition of the other. The Act also sought to safeguard the welfare of any children of the divorcing couple.

After 1971 the number of divorces rose sharply and continuously so that, by the 1990s, it was estimated that one marriage in three would end in divorce. The Marriage Act of 1996 sought to distinguish between the end of marriages of short duration and those of greater length. The former could be ended very rapidly with few long-term obligations between the partners. The legislation attempted to provide the latter with greater long-term protection in respect of property including resources such as pensions.

Ian John Ernest Keil

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divorce

The Columbia Encyclopedia, 6th ed.

Copyright The Columbia University Press

divorce, partial or total dissolution of a marriage by the judgment of a court. Partial dissolution is a divorce
"from bed and board,"
a decree of judicial separation, leaving the parties officially married while forbidding cohabitation. Total dissolution of the bonds of a valid marriage is what is now generally meant by divorce. It is to be distinguished from a decree of nullity of marriage, or annulment, which is a judicial finding that there never was a valid marriage.

Although created by a contract between husband and wife, marriage is a legal relation of a particular nature with certain mutual rights and obligations, determined not by agreements but by the general law. In a sense, then, the state has an interest in every marriage. The parties cannot themselves officially terminate the marital relation by a contract of separation.

Jurisdiction over Divorce

In England, divorce was originally under the jurisdiction of the ecclesiastical courts. These courts followed the canon law rules. They could grant a divorce from bed and board and could pass on the original validity or nullity of the marriage, but could not grant a total divorce from the marriage bond. This power lay only in Parliament. In 1857, by act of Parliament, judicial courts succeeded to the jurisdiction over nullity and partial dissolution and were given the added power to grant total dissolution of the marriage. In the United States, where ecclesiastical courts were never established, the matrimonial law of England applied by these courts was never received as part of the common law. Consequently, suits for divorce can be brought under authority of statute only. The statutes usually confer upon equity courts jurisdiction over divorce. The power to legislate on divorce belongs to the states and not to the federal government, and each state has unique laws regarding divorce. The state of residence at the time of divorce, not the state in which a couple was married, determines what laws apply.

Grounds for Divorce

Until the recent advent of the
"no-fault"
divorce, in which neither party is expected to prove the spouse as the
"guilty party"
in the marriage, a marriage could be dissolved only for what the state deemed to be proper grounds. While
"no-fault"
divorces have become increasingly common in all U.S. states, there are still many cases where marital partners seek to establish fault, particularly in states that require a waiting period of legal separation before allowing a
"no-fault"
divorce. The most common grounds are adultery, desertion, and physical or mental cruelty. Habitual drunkenness, incurable mental illness, conviction of a crime, nonsupport, or constructive abandonment are other grounds for establishing fault. Corrupt consent by a party to the conduct of the other party bars a divorce, as does collusion. Forgiveness of the offense, either express or implied (as by cohabitation), on condition that it not be repeated, is a bar to a divorce for that offense.

The Divorce Decree

A decree of divorce is valid only if the court rendering the decree has jurisdiction, and jurisdiction is in the main based on the domicile of the parties. An absolute divorce, as contrasted with a decree of nullity, takes effect from the date of the decree. By the divorce decree, the custody of the children is usually given at the discretion of the court to one of the parties, the welfare of the children being the principal consideration. In recent years, fathers in divorce proceedings have fought for equal custody rights, calling into question the long-standing tradition of favoring the mother in custody battles. New developments in divorce law allow joint custody of children, as well as visitation rights for grandparents and other relatives.

The wife may retain the husband's name, although in most states she may choose to resume her maiden name. Both parties are usually at liberty to remarry, although this rule is not invariable, and a time limit within which the parties may not remarry is sometimes imposed. In most jurisdictions, one spouse may be entitled to alimony payments from the other at the discretion of the court.

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divorce

divorce The formal legal dissolution of a legally constituted marriage. The conditions necessary to terminate a marriage in divorce vary widely from culture to culture and over time. In certain societies the rights of men and women in this respect are still highly unequal, but there appears to be a move in Western societies towards an acceptance of the idea of irretrievable breakdown of a marriage as suitable grounds for divorce. One of the most significant trends in the wake of this liberalization of divorce laws has been the increasing propensity for divorce proceedings to be initiated by women. In addition, it should be noted that definitions of what constitute marriage and divorce also vary widely, and that in Western societies divorce is increasingly preceded by extended periods of separation between partners, which renders the legal procedure increasingly less relevant.

In the United States and Britain over the past two decades, concern over rising divorce-rates has frequently reached the status of a moral panic, and it is often stated that, given the continuation of current rates, over one in three marriages contracted will end in divorce. However, these calculations must be considered in the light of high rates of remarriage among divorcees, and an increasing propensity to establish common-law rather than formalized legal unions among those groups most at risk of divorce (for example the young). Of course, the statistics say nothing of the social difficulties and personal suffering faced by many people experiencing the effects of divorce, including the children of broken marriages. Another well-publicized statistic indicates that one in five children in Britain, by the age of 16, will have experienced the divorce or separation of their parents, given current rates. In Social Origins of Depression (1978), George Brown and Tirril Harris identified divorce of parents as one of the more stressful life-events likely to have been experienced by women suffering from neurotic depressive conditions. The deleterious effects on divorcing individuals of legal wrangling over children and housing is also well documented.

The basic statistics, and some of their social policy implications, are discussed in Janet Finch , Family Obligations and Social Change (1989). See also FAMILY, SOCIOLOGY OF.

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divorce

di·vorce
/ diˈvôrs/
•
n.
the legal dissolution of a marriage by a court or other competent body:
her divorce from her first husband |
one in three marriages ends in divorce |
[as adj.]
divorce proceedings. ∎
a legal decree dissolving a marriage.
∎ [in sing.]
a separation between things that were or ought to be connected:
the bitter divorce between the company and its largest shareholder.•
v. [tr.]
legally dissolve one's marriage with (someone):
he divorced his first wife after 10 months |
[as adj.] (divorced)
a divorced couple |
[intr.]
they divorced eight years later. ∎
separate or dissociate (something) from something else:
we knew how to divorce an issue from an individual. ∎ (divorce oneself from)
distance or dissociate oneself from (something):
he wanted to divorce himself from all contact with the syndicate.DERIVATIVES:di·vorce·ment
n.

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Divorce or the breakup of a nuclear family is an extremely stressful event for both the divorcing adults and their children. Although adults who are divorcing may feel relief that a difficult marriage is ending, children may feel frightened, confused, and uncertain about their futures.

Since the 1940s the divorce rate in the United States has risen steadily. In the 1940s, 14 percent of women who married eventually divorced. In contrast, it is expected that almost half of marriages that occurred in the year 2000 will end in divorce. As a result, more and more children are living in households headed by a single parent or in blended families with stepparents and stepsiblings.

Divorce is a legal action that separates married partners. Divorce does not end the relationship between parents and their children, nor does it end parents’ responsibility to care for or financially support their children. Under ideal circumstances, parents will peacefully agree on how to split up the family’s money, property, and possessions and how to share responsibility for their children. Unfortunately, the divorcing adults often are bitter and angry and are unable to come to an agreement. When this is the case, the court usually steps in and makes decisions for them.

In the United States, each state has laws and guidelines for how money, property, and possessions are to be split by a divorcing couple. There are also guidelines for decisions that affect children. The courts can decide which parent the children will live with (called custody), who is financially responsible for the children (called child support), and how much time the children spend with the parent they do not live with (called visitation). The courts can even choose who may make medical or legal decisions for the children. Increasingly, courts are assigning joint custody, an arrangement in which divorcing parents share responsibility for their children equally.

Generally, the court makes decisions that are in the best interest of the children, but the interpretation of what is in a child’s best interest varies greatly from judge to judge and court to court. Older children may be asked to give their opinions about issues such as custody or visitation, but judges are not required to consider a child’s preferences. Young children rarely are consulted in this way.

Children are never responsible for their parents’ divorce. How much children understand about divorce and how they react to it depends on their age and how well their parents explain the divorce process to them. Children under the age of 3 or 4 understand very little about the process of divorce, but they do recognize emotional distress and tension in the family. Young children may become confused, emotionally upset, and uncooperative as their lives change as the result of the divorce process.

Children who are ages 5 to 9 sometimes blame themselves for their parents’ divorce and unrealistically believe that if they are “good,” their parents will get back together. Their concerns center on very basic security issues: who will take care of them, whether they will have to move or change schools, where their toys will be kept, and whether their parents will leave them the way they left each other.

Preteens are likely to be angry, moody, and embarrassed by divorce. They may be intensely critical and resent or blame one or both parents. Preteens are old enough to worry about the financial effect of divorce and to be annoyed about extra household chores or childcare responsibilities that result from their changed circumstances. They also may worry about how their parents are coping.

Although they are capable of empathizing with their parents’ feelings, teenagers still may feel angered by the divorce. They may be depressed and worry about questions such as whether they will be able to afford college. Teens may be confused because they are preparing to leave the family at a time when their family is “breaking up.” Some teens turn to risky types of behavior, such as drinking or promiscuous sexual activity, to deal with their pain. Others become ultra responsible and step in to act as parents for younger siblings. Neither response is an emotionally healthy way of coping.

All children, regardless of age, feel loss during a divorce and go through a grieving process. Most children pass through normal periods of insecurity, guilt, depression, and anger. By having their children talk to a mental health professional, clergyman, or school counselor, parents can help young people work through these feelings. Joining a self-help group for children of divorcing parents can give children support and a safe place to talk about their feelings.

Some children have parents who break up without a legal divorce. These may include children whose mothers and fathers lived together but were unmarried or children living in households of two committed adults of the same gender. When these unmarried couples break up, there is no formal, legal divorce in most states because there was not a legal marriage, but children may feel the same grief or sense of loss that children experiencing a legal divorce feel.

Many studies show that children of divorced couples are more likely to live in families experiencing poverty or difficult financial circumstances after the divorce. Stresses resulting from the life changes surrounding the divorce make children more vulnerable to physical and emotional illnesses, especially when parents continue to fight over custody issues. In general, children of divorced parents are more likely to have health problems, to participate in more risky and antisocial behavior, and to be at higher than average risk of school failure than are children from two-parent non-divorced families. In other words, divorce is very stressful for everyone.

Research is showing that there is much confusion and disruption during a divorce, and the effects can last much longer than previously thought. Some studies suggest that children of divorced parents have more difficulty establishing mature emotional relationships when they become adults. Although children of divorce are more likely to have these problems, the majority of children who experience divorce grow up happy, healthy, and emotionally stable.

Parents need to work hard to maintain a civil relationship with each other during and after the divorce. It is best that they never ask their children to take sides, carry messages from one parent to the other, or tattle on the ex-spouse. There are other things parents can do to help their children, among them:

Talk honestly about the divorce without blaming.

Explain what is likely to happen to the children during and after the divorce.

Get counseling and support for themselves and their children.

Keep the daily routine and participation in extracurricular activities as normal as possible.

Talking about their relationship with a team of therapists can help couples cope with the emotional stress of getting a divorce. PhotoEdit

Discourage children’s fantasies about the parents getting back together.

Avoid making children feel guilty about wanting to spend time with the other parent.

Encourage children to maintain established relationships with grandparents or other relatives on both sides of the family.

Divorce is an unsettling experience, and it is normal to feel grief for the family that has dissolved. While most people are able to pass through the grief, anger, and uncertainty to grow into happy, productive lives, the distress of the divorce process is real and needs to be met with appropriate support from family, friends and mental health counselors.

Books

Cleary, Beverly. Dear Mr. Henshaw. Ormond Beach, FL: Camelot, 2000. This book tells the story of Leigh, an 11-year-old boy who keeps a journal of his experiences and feelings, including those about his parents’ divorce.

Rothchild, Gillian. Dear Mom and Dad: What Kids of Divorce Really Want to Say to Their Parents. New York: Pocket Books, 1999. A book for older children and their parents, focusing on the needs and emotions of children during divorce.

Schneider, Meg F., and Joan Zuckerberg. Difficult Questions Kids Ask— and Are Afraid to Ask—About Divorce. New York: Simon and Schuster, 1996. The question-and-answer format of this book addresses issues hidden behind children’s asked and unasked questions about divorce.

Staal, Stephanie.The Love They Lost: Living with the Legacy of Our Parents’ Divorce. New York: Delacorte Press, 2000. Stories of 120 people who have lived through the divorce of their parents.

Organizations

Rainbows, 2100 Golf Road, no. 370, Rolling Meadows, IL 60008-4231. An organization that offers peer support groups and training for children and adults grieving from a death, divorce, or painful family transition. Telephone 800-266-3206 or 847-952-1770 http://www.rainbows.org

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divorce

divorce Legal dissolution of marriage. The ease with which a divorce may be obtained, if at all, varies greatly. In most Western countries, adultery was for many years the only ground for divorce. Desertion, insanity and mental cruelty were later added. More recently, irretrievable breakdown, which apportions blame on neither partner is cited. In many modern Western societies, more than one in three marriages end in divorce.

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